Full Judgment Text
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PETITIONER:
BHARTIYA HOMOEPATHY COLLEGE, BHARATPUR
Vs.
RESPONDENT:
STUDENTS COUNCIL OF HOMEOPATHYMEDICAL COLLEGE, JAIPUR & ORS.
DATE OF JUDGMENT: 03/02/1998
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
[With Civil Appeal No. 16041/96, CA No.555/98 {Arising out
of SLP {C} No. 2991/98 {cc 9141/97}] and W.P.NO.81/97]
J U D G M E N T
Mrs, Sujata V. Manohar. J.
Delay condoned.
Leave granted,
Appeals 16040 and 16040 and 16041 of 1996 arise from a
common judgment of the Division Bench of the High Court of
Rajasthan at Jaipur dated 11th of October, 1996 in D.B.
Civil Special Appeal (Writ) No.15/1996 against the order
dated 13.12.1995 of the Learned Single Judge in Civil writ
Petition 4882 of 1995. Civil Appeal No. 16040 of 1996 has
been filed by Bhartiya Homeopathy College, Bharatpur while
Civil Appeal No. 16041 of 1996 is filed by Yuvraj Pratap
Senior Memorial Homeopathy Medical College, Alwar. For the
sake of convenience we are setting out the facts in Civil
Appeal No. 16041 of 1996. Both the appeals along with appeal
arising from S.L.P. (C) No. 2991/98 (cc 9141/97) and Writ
Petition No. 81 of 1997 have been heard together because
they raise common question and arise from the same judgment
of the Division Bench of the Rajasthan High Court.
In 1969 the Legislature of the State of Rajasthan
enacted the Rajasthan Homeopathic Medicine Act, 1969 (Act 1
or 1970). Section 3 of the Act provides for the
establishment of the Rajasthan Board of Homeopathic
Medicine. Section 40(1) of the said Act prescribes that the
said Board shall have the power to recognise Homeopathic
educational or instructional institutions for the purpose of
affiliation. Section 40(iii) exposers the said Board to hold
examinations and to grant degrees/diplomas to persons who
shall have pursued a course of study in an educational
institution affiliated to the Board. Accordingly the
Rajasthan Board of Homeopathic Medicine was set up under the
said Act. It conducted examinations for the grant of
B.H.M.S. Degree as well as examinations for A a Diploma in
Homeopathy. The two appellant colleges at Alwar and
Bharatpur were, at the material time, affiliated to the
Rajasthan Board of Homeopathic Medicine. Their students
appeared for the B.H.M.S. examination conducted by the
Rajasthan Board of Homeopathic Medicine until about 1994.
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In 1973 the Central Government enacted the Homeopathy
Central Council Act, 1973 (Act 59 of 1973). Section 13 of
the Homeopathy Central Council Act, 1973 provides for
recognition of medical qualifications in Homeopathy granted
by any University, Board or Medical Institution in India.
The recognised institutions and qualifications are listed in
the Second Schedule of the Act. In the Second Schedule,
under the head "State of Rajasthan", the Rajasthan Board of
Homeopathic Medicine is recognized from 1979 onwards for a
Diploma in Homeopathic Medicine & Surgery (D.H.M.S.). The
University of Rajasthan is recognised for the degree of
B.H.M.S. from 1990. The Rajasthan Board of Homeopathic
Medicine is not recognised for the degree of B.H.M.S. under
the Second Schedule to the Homeopathy Central Council Act,
1973. The Rajasthan Board of Homeopathic Medicine, however,
continued to hold examination for the degree of B.H.M.S.
The Rajasthan University also conducted a degree course in
Homeopathy for the degree of B.H.M.S. The Homeopathy Medical
College at Jaipur was affiliated to the Rajasthan University
for the B.H.M.S. degree cause.
On 31st of March, 1987 the State Government, Medical
and Health Department, wrote to the Registrar of the
University of Rajasthan stating that after consultation with
the Rajasthan Board of Homeopathic Medicine and the Board of
Indian medicine Rajasthan, the State Government considered
it desirable that examination, inter alia, in respect of all
the classes of B.H.M.S. should be conducted thorough the
University of Rajasthan in respect of students studying in
the colleges which should get themselves affiliated to the
University. The letter mentioned three colleges which were
conducting courses leading the B.H.M.S. These were the two
appellant colleges - one at Bharatpur and the other at
Alwar, and the Homeopathic Medical College at Jaipur. The
State conveyed to the University that it would be better if
the University agrees to conduct all the examination of
B.H.M.S./B.U.M.S. degree courses in respect of all the years
right away so that the respective Boards may wind up their
examination word and the State would be in a position to
reshape or dissolve these Boards of the registration work of
chiktsaks etc. This proposal was considered at a meeting of
the Academic Council of the University of Rajasthan at its
meeting of 13.6.1987. In the minutes of the meeting it is
recorded that is respect of Homeopathy, the said three
colleges had sought affiliation from 1987-88 session. It was
decided to recommend acceptance of the State Government’s
proposal subject to certain conditions which are recorded
there. There does not seems to have been any further
progress regarding affiliation of the appellant colleges to
the university of Rajasthan for the B.H.M.S. course. For the
academic session 1988-89, the State of Rajasthan, Medical
and Public Health Department, by its letter dated 21.7.1988
advised the two appellant colleges that until a final
decision on the application of these colleges for
affiliation is taken by the University, status quo may be
maintained and the affiliation of the two appellant colleges
may be continued with the Rajasthan Homeopathic Medicine
Board. The State Government also advised the Board that it
will not be proper to stop admissions till the matter
regarding affiliation is finally decided by the University.
In the meanwhile, for the purpose of affiliation to the
Rajasthan University inspections were carried out by the
University of Rajasthan and we are informed that the
inspection reports were satisfactory.
In the year 1993 the judgment of this Court in Unci
Krishna, J.P. and Ors. V. State of Andhra Pradesh and Ors.
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(1993 1 SCC 645) was pronounced. As a result, the Central
Council of Homeopathy, by its letter dated 18.8.1993
addressed to the Secretary, Government of Rajasthan,
Department of Health and Family welfare, Jaipur, as well as
to the Registrar, Rajasthan Board of judgment in the above
case, had held that by virtue of the provisions of the
University Grants Commission Act, no educational institution
in this country except a University is entitled to award
degrees. The Central Council, therefore, requested the State
of Rajasthan that the State Board of Homeopathic Medicine
should be asked not to award a degree qualification in
Homeopathy henceforth.
In the meanwhile, the Central Council recognised the
appellant college at Alwar for the year 1993-94 and this
recognition has been extended subsequently for the years
1994-95, 1995-96 and 1996-97.
Pursuant to the application for affiliation made by the
appellant college at Alwar to the University of Rajasthan
for B.H.M.S. degree course, the University , by its letter
dated 23.1.1994, granted a provisional affiliation for
B.H.M.S. degree course to the appellant college at Alwar for
the session 1993-94 in preparation for its first B.H.M.S.
examination 1994, second B.H.M.S. examination 1995, third
B.H.M.S. examination 1996 and fourth B.H.M.S. examination
1997 to the fulfillment of conditions laid down in that
letter. The students of this college who were admitted to
the 1st year B.H.M.S. course in 1993-94 thus became entitled
to appear in the examinations of the Rajasthan University
leading to the degree of B.H.M.S. Subsequently, on 6.4.1995
the University of Rajasthan granad provisional affiliation
to the appellant college at Alwar for the academic session
1994-95 in similar terms and by a letter of 2nd of April,
1996 it again granted provisional affiliation to the said
college for the academic session 1995-96 also. This
affiliation, however, did not cover students of the
appellant college who had taken admission prior to 1993-94
in the said college and who were required to appear in
different years of B.H.M.S. examinations in 1993-94 and
thereafter. However, in view of the provisional affiliation
granted to the appellant college by the University of
Rajasthan in January, 1994 the State of Rajasthan issued an
order dated 20th of June, 1994 directing the Rajasthan Board
of Homeopathic Medicine not to conduct B.H.M.S.
examinations.
This order was challenged in a writ Petition filed
before the High Court of Rajasthan. We are, however not
concerned with those proceedings here. Thereafter the State
Government addressed a letter dated 16th of August, 1994 to
the Registrar, University of Rajasthan with regard to the
B.H.M.S. examination which were, upto then, conducted by the
Rajasthan Homeopathic Medicine Board. The letter referred to
the Central Council for Homeopathy’s letter of 18th of
August. 1993 and the decision of this Court in Unci Krishna
v. state of Andhra Pradesh (supra). It also referred to the
opinion of the Law Department that the Rajasthan Homeopathic
Medicine Board cannot issue degrees in Homeopathic Medicine.
The letter recorded that keeping in view the above position,
the State Government suspended the examination for B.H.M.S.
degree course being conducted by the Rajasthan Homeopathic
Medical Board and had also directed that no admissions will
be made by the appellant colleges for the B.H.M.S. degree
course of the Rajasthan Homeopathic Medicine Board. The
letter went on to say, "As the examination for degree course
cannot be conducted through Rajasthan Homeopathic Medical
Board, therefore, now this questions is under active
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consideration before the State Government that the students
who had taken admission for degree course in Alwar college
and Bharatpur college and who are in the second, third and
final year of the degree course how their future may be
saved and through whom their examination shall be
conducted."
"It was discussed on the above reference with the
committee and Vice Chancellor of the University of Rajasthan
on 24.6.1994. During the period of discussion, this
proposal was also discussed that the examination of students
of the Bharatpur and Alwar Homeopathetic Colleges in II, III
and final years of B.H.M.S. Course shall migrate to the
Rajasthan Homeopathic College Jaipur which is affiliated to
the University of Rajasthan and their examination shall be
got conducted by the University of Rajasthan. It seems that
pursuant to this decision, some of the students of the
appellant colleges were allowed to migrate to the said
college at Jaipur. However, a large number of students in
this category continued with the two appellant colleges.
Looking to the unforeseen situation in which these
students were placed on account of the Rajasthan Homeopathic
Medicine Board not being in a position to conduct the
B.H.M.S. Degree examination, the Vice-Chancellor of the
University of Rajasthan passed on order dated 13th of May,
1995 which is the subject-matter of challenge in these
proceeding. The order of 13th of May, 1995 has been passed
pursuant to the recommendation made by the Board of
Inspection of the University of Rajasthan as per Resolution
No.16 passed at its meeting held on 12th and 18th of
December, 1994. The Vice-Chancellor by the order of 18th of
May, 1995. has ordered that "the examinations of II, III
and final year B.H.M.S. students admitted in the Homeopathic
College, Bharatpur and Homeopathic College, Alwar be
conducted by the University, without granting affiliation
for these examination, as per the existing syllabus of the
University prescribed for these examinations in order to
avoid hardship to the students and also keeping in view the
fact that the Rajasthan Homeopathy Board which was
conducting examinations of these two colleges has now been
rendered ineligible for conducting examinations and awarding
Degrees."
The commendations of the Board of Inspection and Vice-
Chancellor’s order of 13.5.1995 were ratified by the
Syndicate at its meeting held on 20/21.5.1995.
The Students’ Council of the Homeopathic College at
Jaipur filed a public interest litigation challenging the
order of the Vice-Chancellor permitting the students in II,
III and final year B.H.M.S. classes of the appellant
colleges to appear at the examinations being conducted by
the University of Rajasthan. The petition was dismissed by a
learned Single Judge of the Rajasthan High Court holding
that the Students’ Council of the Jaipur College had no
locus stand to file a public interest litigation In appeal,
however, that Division Bench of the High Court has set aside
the order of the Vice-Chancellor and has upheld the locus of
the Students’ Council of the Jaipur College to file such a
petition. The present appeals before us are from this
judgment and order of the Division Bench of the Rajasthan
High Court at Jaipur.
From the above narration of facts, it is clear that the
order of the Vice-Chancellor was issued after extensive
consultations with the State Government and after the Board
of Inspection of the Rajasthan University approved of the
students belonging to the two appellant colleges appearing
for the concerned B.H.M.S. examinations. The students who
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had taken admission’ in the two appellant colleges for the
B.H.M.S. course had done so under a bona fide belief that
the B.H.M.S. examination conducted by the Rajasthan Board of
Homeopathic Medicine was an examination which was conducted
by the Board in accordance with laws and that the two
appellant colleges who were affiliated to the Rajasthan
Board of Homeopathic Medicine were entitled to send their
students for the B.H.M.S. examinations conducted by the
Rajasthan Board of Homeopathic Medicine. It was on account
of the judgment of this Court in the case of Unci Krishna,
J.P. V. State of Andhra Pradesh (supra) and the correct
legal position being pointed by the Central Council of
Homeopathy in its light, that the State Government had to
take a decision to close down the B.H.M.S. degree
examination conducted by the Rajasthan Board of Homeopathic
Medicine. The State itself recognised that the sudden
closing down of the degree examination of the Rajasthan
Board would lead to a complete disruption of the studies of
the students who had already taken admission for the
B.H.M.S. degree course in the two appellant colleges,
through no fault of theirs. In order to see that the future
of these students was no jeopardised, the State Government
had requested the University of Rajasthan to accommodate
these students and permit them to appear for the B.H.M.S.
examinations for different years being conducted by the
University of Rajasthan. The University had satisfied
itself through the Board of Inspection that the two
appellant colleges were imparting education in Homeopathy in
a satisfactory manner. The University also took into account
the fact that students of the IInd, IIIrd and final year
B.H.M.S. courses in the two appellant colleges were left
without any remedy because of the sudden scrapping of the
degree examination of the Rajasthan Board of Homeopathic
Medicine. Therefore, in view of the emergency which had
arisen, the Vice-Chancellor permitted the students of IInd,
IIIrd and renal year degree courses in the two appellant
colleges to appear for the University examinations for the
Iind, IIIrd and final years of the B.H.M.S. course without
granting affiliation to these two colleges for the concerned
previous relevant years.
It is necessary to note that the University had granted
affiliation to both these colleges provisionally from the
academic year 1993-94 onwards. As a special case, the Vice-
Chancellor permitted the students of these colleges who had
taken admission prior to 1993-94 in the B.H.M.S. degree
course also to appear for the examinations as set out in the
order of the vice-Chancellor. This order has been retired by
the Syndicate also. The only narrow question which we have
to consider is whether the Vice-Chancellor has the power to
do so under the Rajasthan University Act of 1946.
The relevant provisions of Section 4 of the University
of Rajasthan, Act, 1946 which deals with the powers of the
University are as follows:
"4: The University shall have the
following powers, namely:-
(1)...............
(1A)..............
(1B)..............
(2) to hold examinations and to
confer degrees and other
academic distinction upon-
(a) persons who have pursued a
course of study in the University
or its affiliated colleges or
approved institutions and appeal at
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and as the examinations of the
University, nuder conditions laid
down in the Ordinances and
Regulations:
(b) persons who have not pursued a
course of study in the University
or its affiliated colleges or
approved institutions but appear at
and pas the examinations of the
University as non-collegiate
students under such conditions may
under such condition as may be
prescribed by the University from
time to time:
Provided that such students have
been residing within the State of
Rajasthan for such period as may be
prescribed by the University in the
Ordinances and Regulations."
Under sub-section (4), the University can confer
degrees, diplomas and other academic distinction on and
provide teaching, instruction and training for external
students, in the manner prescribed by the Statutes,
Ordinances and Regulations. Under sub-section (4A), the
powers of the University include the power to admit colleges
and institutions to the privileges of the University and to
withdraw such privileges. under sub-section (7), the
University can inspect affiliated colleges and approved
institutions and take measures to ensure that proper
standards of teaching, instruction and training are
maintained in them.
Under Section 4, sub-section (2), therefore, the power
to hold examinations and to confer degrees, is given not
merely in respect of persons who have pursued a course of
study in the University or its affiliated colleges or
approved institutions, but also in respect of persons who
have not pursued a course of study in the University or its
affiliated colleges or approved institutions but who pass
the examinations of the University. under Section 4, sub-
section (15), the University has the power to do all such
other acts, whether incidental to the powers aforesaid or
not, as may be requisite in order to further the object of
the University as an educational body, and to cultivate and
promote the arts, science and other branches of learning.
The powers of the Vice-Chancellor are laid down in
Section 13. Under Section 13(1), the Vice-Chancellor shall
be the principal executive and academic officer of the
University. Under sub-section (2). It shall be the duty of
the Vice-Chancellor to see that this Act, the Statutes and
the Ordinances are faithfully observed and he shall have all
powers necessary for this purpose. Under sub-section (4) it
is provided as follows:
"13(4)(a) : He may take action in
any emergency, which, in his
opinion, calls for immediate
action. He shall, in such a case,
and as soon as may be thereafter,
report his action, to the officer,
authority or other body who or
which would ordinarily have dealt
with the matter.
The powers and functions of the Syndicate are laid down
in Section 22. Under Section 22(i), the Syndicate, subject
to the Statutes, has to inspect and affiliate, recognise or
approve colleges and hostel or institutions, and to withdraw
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affiliation, recognition or approval from them. Under sub-
section (j), it has to arrange for the holding examinations
and publishing results thereof. Under sub-section (k), it
has to maintain proper standards of teaching and examination
in consultation with the Academic Council. The power,
therefore, to hold examinations and publish results as also
the power to inspect, affiliate or approve colleges and
institutions is with the Syndicate. The Vice-Chancellor,
however, has in an emergency the power to take action
immediately in respect of any of these matters but the
action so taken has to be placed before the concerned
authority, that is to say the Syndicate.
Statute 37 of the University of Rajasthan deals with
inspection and recognition of a college. Under Status 37(1),
a college applying for affiliation, whether for the first
time or for extension in the period to temporary/provisional
affiliation, or in additional subjects, or for additional
courses of study, or for permanent affiliation, shall make a
written application to the Registrar for the purpose in the
manner provided in the Statute and the Syndicate shall have
the power to recognise or withdraw recognition. Under
Statute 37A, a Board of Inspection is required to be
constituted for the inspection of colleges as set out in
that Statute.
In the present case, the students of the two appellant
colleges who had joined the course of studies offered by the
two colleges leading to a B.H.M.S. degree of the Rajasthan
Board prior to the appellant colleges being affiliated with
the University of Rajasthan for the B.H.M.S. course, were
permitted by the Vice-Chancellor by the impugned order to
take the examinations for the B.H.M.S. course of the
University of Rajasthan. Looking to the situation where the
examinations of B.H.M.S. conducted by the Rajasthan Board
were suddenly required to be stopped, the students who were
left stranded were thus, as a special case, allowed by the
Vice-Chancellor to appear for the B.H.M.S. examination of
the concerned year of the University. This was in clear
exercise of the emergency power of the Vice-Chancellor. But
he had taken this action on the recombinations of the Board
of Inspectors. The decision of the Vice-Chancellor was
placed before the Syndicate as required under Section 13(4)
and the Syndicate had also approved of the action of the
Vice-Chancellor as also the recommendation of the Board of
Inspectors.
It is, however, contended that only the students of an
affiliated collage can appear for the University
examination. In this connection, the respondents have
emphasised Section 4(2) of the University of Rajasthan Act
which empowers the University to hold examination and to
confer degrees on persons who have studied in the University
or its affiliated colleges or approved institutions. It is
submitted that unless the students have studied in an
affiliated college, the University or the Vice-Chancellor or
the Syndicates has no power to permit such students to
appear for its examinations. This submission ignores clause
(b) of sub-section (2) of Section 4 which permits the
University to allow even persons who had not pursued a
course of studies in the University or its affiliated
colleges or approved institutions to appear and pass the
examinations as non-collegiate students. The power of the
University, therefore, is not confined to only permitting
students from affiliated colleges to appear for an
examination. In a given case, the University may permit even
persons not belonging to affiliated collages to appear for
the examination. The power to grant approval for
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institutions also is wide. The approval can be for a limited
purpose such as permitting appearance in an examination over
a limited period just as affiliation can be provisional or
permanent or restricted. The University has also very wide
powers under sub-section (15) of Section 4 to do all such
other acts whether incidental to the specified powers or
otherwise as may be required to further the objects of the
University as an educational body. These powers are
exercised, inter alia, through the Vice-Chancellor, the
Syndicate and the Board of Inspectors. The Vice-Chancellor
was, therefore, within his rights in passing the impugned
order of 13th of May, 1995 and the Syndicate has, in
exercise of its powers, ratified the action of the Vice-
Chancellor and the recommendations made by the Board of
Inspectors. The High Court, in our view, was not right in
coming to the conclusions that the vice-Chancellor had no
power to pass such an order.
This is also not a case where the two college were
found to be sub-standard. In fact the Central Council
recognised the appellant college for the academic year 1994-
95 in May, 1994 and thereafter it has recognised the college
for the academic years 1994-95, 1955-96, and 1996-97 also.
Both the colleges are nor affiliated to the University of
Rajasthan. The Board of Inspection also approved the two
colleges. The order of the Vice-Chancellor merely care of
those students who joined these two colleges for the degree
of the Board prior to their affiliation to the University.
The Learned Single Judge who originally dismissed the
Wit Petition had reason to doubt the Locus stand of the
Students Council of the Jaipur College to file this so
called public interest litigation. These students are
studying for the same B.H.M.S. course of the University of
Rajasthan. There can be some doubt about their bona fides
in challenging the order permitting other students of other
colleges to appear for the same examination. What is more
relevant, there is no basis for alleging any harm to public
interest in allowing the students of the two appellant
colleges to appear for the B.H.M.S. examinations of the
University of Rajasthan. The university which had inspected
these two appellant colleges and considered the course of
studies which they offered, was in a far better position to
decide whether the students who had studied for the earlier
course were fit enough to be allowed to appear for the
examinations of the University of Rajasthan. The decision
which was taken by the University was a bona fide decision
after taking into account the standard of teaching offered
by the two appellant colleges. The action was also
supported by the State Government. The Central council of
Homeopathy has also recognised these two colleges. The
public interest was not in any manner adversely affected by
the impugned decision.
The Students Council has now filed an affidavit
disclosing its status and its constitution. It does not
disclose whether the Council was authorised to file the
present litigation, and if so, by whom; whether it has the
funds to indulge in this litigation and whether it had the
backing of a majority of its members for this litigation.
Since on merits also we find that the action must fail, we
are not examining these questions any further except for the
purpose of indicating that such organisations, without
disclosing any material regarding their nature and functions
and funding, should not be allowed lightly to undertake
litigation in the name of public interest which can cause a
lot of damage to others.
In the present case, because of the litigation the
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students have not been able to complete their B.H.M.S.
course for a number of years. Pursuant to the interim order
these students have been permitted to appear for
examinations conducted in December, 1996 and the results
have also been declared. We direct that in accordance with
the results so declared the students may be allowed to
continue/complete the B.H.M.S. course with the University of
Rajasthan in accordance with law and those who have
qualified for the B.H.M.S. degree as per these results be
granted the degree by the University of Rajasthan.
The Civil Appeal Nos.16040 and 16041 of 1996 are,
therefore, allowed. The impugned judgment and order of the
High Court is set aside and the Original Writ petition filed
before the High Court is dismissed with costs.
The appeal arising from S.L.P.(C) No.2991/98 (cc
9141/97) and Writ Petition No.81 of 1997 are also disposed
of accordingly.